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ACCOMMODATING A DISABILITY

Ed Canning May 10, 2004

QUESTION: I have been working for a company for 5 years that runs 10-hour shifts. A few months ago, I was diagnosed with sleep apnea and for the last few months have had to sleep using a CPAC machine to prevent me from stopping breathing while I=m sleeping. My doctor became concerned that 10-hour shifts were too long for someone with my condition and gave me a note to give to my employer indicating that I could work only two 10-hour shifts a week and the other three shifts needed to be 8-hour shifts for a 44-hour total. When the company received the note, they hauled me into the office and told me they were putting me on short term disability. Can they do this?

ANSWER: There is no doubt that your diagnosis of sleep apnea would qualify as a handicap under the Ontario Human Rights Code given that it is a serious and chronic illness. Your employer has a duty to accommodate that illness unless it can prove that it would be undue hardship for it to do so. Proving undue hardship is almost impossible for a large company such as the one you work for. This is exactly the kind of situation that the drafters of the Ontario Human Rights Code had in mind when they prohibited discrimination in employment on the basis of, among other things, a handicap.

You have 6 months from the date they put you on short term disability to file a complaint with the Ontario Human Right Code. I recommend that you do so immediately. From everything you=ve told me, your employer will lose and likely end up having to reinstate you and pay you for any shortage in income as a result of them having forced you onto the short term disability. You can contact the Ontario Human Rights Commission to obtain the necessary forms to file the complaint by phoning 1-800-387-9080. Good luck!.